Onate v Abrogar

G.R. No. 107303

Feb 21, 1994
Rule 57
FACTS:
Sun Life Assurance Company of Canada (Sun Life) filed a complaint for a sum of money
with a prayer for a writ of attachment against petitioners (Emmanuel C. Oate and Econ
Holdings Corporation), and Noel L. Dio, which was raffled to Branch 150 of the RTC Makati,
presided over by respondent Judge. The following day Judge Abrogar issued an order granting
the issuance of a writ of attachment. Upon Sun Life's ex-parte motion, the trial court amended
the writ of attachment to reflect the alleged amount of the indebtedness.
On January 21, 1992, petitioners filed an "Urgent Motion to Discharge/Dissolve Writ of
Attachment." That same day, Sun Life filed an ex-parte motion to examine the books of
accounts and ledgers of petitioner Brunner Development Corporation (Brunner) at the Urban
Bank, Legaspi Village Branch, and to obtain copies thereof, which motion was granted by
respondent Judge. The examination of said account took place on January 23, 1992. Petitioners
filed a motion to nullify the proceedings taken thereat since they were not present.
On January 30, 1992, petitioners and their co-defendants filed a memorandum in support of the
motion to discharge attachment. Also on that same day, Sun Life filed another motion for
examination of bank accounts, this time seeking the examination of Account No. 0041-0277-03
with the Bank of Philippine Islands (BPI) which, incidentally, petitioners claim not to be owned
by them and the records of Philippine National Bank (PNB) with regard to checks payable to
Brunner. Sun Life asked the court to order both banks to comply with the notice of garnishment.
On February 6, 1992, respondent Judge issued an order (1) denying petitioners' and the codefendants' motion to discharge the amended writ of attachment, (2) approving Sun Life's
additional attachment, (3) granting Sun Life's motion to examine the BPI account, and (4)
denying petitioners' motion to nullify the proceedings of January 23, 1992.
Hence, the instant petitions of CERTIORARI WITH PRAYER FOR A TRO.
Issue:
1) Whether or not respondent Judge had acted with grave abuse of discretion in issuing ex
parte the original and amended writs of preliminary attachment and the corresponding notices of
garnishment and levy on attachment pending acquisition of the jurisdiction of the RTC.
2) Whether or not respondent Judge had acted with grave abuse of discretion amounting to lack
or in excess of jurisdiction in allowing the examination of the bank records though no notice was
given to them.
Ruling/Ratio:
UNMERITORIOUS FOR BOTH.
#1 Petitioners initially argue that respondent Judge erred in granting Sun Life's prayer for a writ
of preliminary attachment on the ground that the trial court had not acquired jurisdiction over
them. This argument is clearly unavailing since it is well-settled that a writ of preliminary

attachment may be validly applied for and granted even before the defendant is
summoned or is heard from.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any
time thereafter." The phrase "at the commencement of the action," obviously refers to the date
of the filing of the complaint which, as abovepointed out, its the date that marks "the
commencement of the action;" and the reference plainly is to a time before summons is served
on the defendant or even before summons issues.
RE ALLEGED FRAUD IN CONTRACTING THE OBLIGATION
Petitioners then contended that the writ should have been discharged since the ground on
which it was issued fraud in contracting the obligation was not present. This cannot be
considered a ground for lifting the writ since this delves into the very complaint of the Sun Life.
Moreover, an attachment may not be dissolved by a showing of its irregular or improper
issuance if it is upon a ground which is at the same time the applicant's cause of action in the
main case since an anomalous situation would result if the issues of the main case would be
ventilated and resolved in a mere hearing of the motion.
In the present case, one of the allegation in petitioner's complaint below is that the defendant
spouses induced the plaintiff to grant the loan by issuing postdated checks to cover the
installment payments and a separate set of postdated checks for payment of the stipulated
interest.The issue of fraud, then, is clearly within the competence of the lower court in the main
action.
RE WRIT PRECEEDING SUMMONS
Finally, petitioners argue that the enforcement of the writ was invalid since it undisputedly
preceded the actual service of summons by six days at most. We do not agree entirely with
petitioners. True, this Court had held in a recent decision that the enforcement of writ of
attachment may not validly be effected until and unless proceeded or contemporaneously
accompanied by service of summons.
But we must distinguish the case at bar from other cases. In those other cases, summons was
never served upon the defendants. The plaintiffs therein did not even attempt to cause service
of summons upon the defendants. This is not true in the case at bar. The records reveal that
Sheriff Flores and Sun Life did attempt a contemporaneous service of both summons and the
writ of attachment, but we stymied by the absence of a responsible officer in petitioners' offices.
Note is taken of the fact that petitioners Oate and Econ Holdings admitted in their answer that
the offices of both Brunner Development Corporation and Econ Holdings were located at the
same address and that petitioner Oate is the President of Econ Holdings while petitioner Dio
is the President of Brunner Development Corporation as well as a stockholder and director of
Econ Holdings.
Thus, an exception to the established rule on the enforcement of the writ of attachment
can be made where a previous attempt to serve the summons and the writ of attachment
failed due to factors beyond the control of either the plaintiff or the process server,
provided that such service is effected within a reasonable period thereafter.

Several reasons can be given for the exception. First, there is a possibility that a defendant,
having been alerted of plaintiffs action by the attempted service of summons and the writ of
attachment, would put his properties beyond the reach of the plaintiff.
Second, the court eventually acquired jurisdiction over the petitioners six days later. To nullify
the notices of garnishment issued prior thereto would again open the possibility that petitioners
would transfer the garnished monies while Sun Life applied for new notices of garnishment.
Third, the ease by which a writ of attachment can be obtained is counter-balanced by the ease
by which the same can be discharged: the defendant can either make a cash deposit or post a
counter-bond equivalent to the value of the property attached. The petitioners herein tried to
have the writ of attachment discharged by posting a counter-bond, the same was denied by
respondent Judge on the ground that the amount of the counter-bond was less than that of Sun
Life's bond.
#2 NO. Petitioners' second ground assail the acts of respondent Judge in allowing the
examination of Urban Banks' records and in ordering that the examination of the bank records
of BPI and PNB as invalid since no notice of said examinations were ever given them. Sun Life
grounded its requests for the examination of the bank accounts on Section 10, Rule 57 of the
Rules of Court.
It is clear from the foregoing provision that notice need only be given to the garnishee, but the
person who is holding property or credits belonging to the defendant. The provision does not
require that notice be furnished the defendant himself, except when there is a need to examine
said defendant "for the purpose of giving information respecting his property.
Furthermore, Section 10 Rule 57 is not incompatible with Republic Act No. 1405, as amended,
"An Act Prohibiting Disclosure or Inquiry Into, Deposits With Any Banking Institution and
Providing Penalty Therefore," for Section 2 therefore provides an exception "in cases where the
money deposited or invested is the subject matter of the litigation."